William Lewis v. Warden Canaan USP

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: AMBRO, GREENAWAY, JR. and SCIRICA, Circuit Judges. Total Pages: 7. BLD-113

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Document: 003112572314

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BLD-113

Date Filed: 03/23/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 16-4036
____________
WILLIAM SOLOMON LEWIS,
Appellant
v.
WARDEN CANAAN USP
__________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(M.D. Pa. No. 3-15-cv-00092)
District Judge: Robert D. Mariani
__________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2) or
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
January 26, 2017
Before: AMBRO, GREENAWAY, JR., and SCIRICA, Circuit Judges
(Opinion filed: March 23, 2017)
____________
OPINION*
____________
PER CURIAM

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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William Lewis appeals from an order of the District Court denying his petition for
writ of habeas corpus, 28 U.S.C. § 2241. For the reasons that follow, we will summarily
affirm.
Lewis, while incarcerated at the United States Penitentiary in Coleman, Florida,
was charged in Incident Report No. 2427489 with a Code 227 violation for refusing to
submit to a tuberculosis skin test. Bureau of Prisons (“BOP”) Program Statement
6190.04, requires inmates to undergo a purified protein derivative (“PPD”) skin test for
tuberculosis (“TB”). Lewis complained to prison personnel that he had previously
experienced blistering and swelling following a PPD test. He requested a chest x-ray in
lieu of the test. The request was denied by prison staff and Lewis’s continued refusal
resulted in the misconduct, 28 C.F.R. § 549.12(b)(4).
On April 12, 2013, Lewis appeared before a Disciplinary Hearing Officer and
stated that he refused the PPD skin test because he had previously suffered an allergic
reaction to it; he noted, however, that he did not refuse all testing for TB. Lieutenant
Phelps appeared as a witness and corroborated Lewis’s refusal, and he further noted that
Lewis had been given a chest x-ray in lieu of a PPD test on at least one occasion while
incarcerated in another institution. The Hearing Officer called T. Objio as a witness, and
she stated that inmates could not have a chest x-ray in lieu of a PPD test unless a prior
allergic reaction was documented. Moreover, Lewis’s records showed that he underwent
a PPD test the year before, in 2012, and those records did not show that he suffered an
allergic reaction. Lewis’s staff representative, Nurse Flagg, stated at the hearing that no
allergic reactions to the PPD test had ever been documented in Lewis’s case. Other
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documentary evidence, including a prior incident report, was submitted for the Hearing
Officer’s review. Lewis presented no documentary evidence in support of his assertion
that he had previously suffered an allergic reaction to a PPD test.
Following the hearing, the Hearing Officer concluded that Lewis had no basis for
refusing to submit to the PPD test and found him guilty of the misconduct. Lewis was
sanctioned as follows: loss of 27 days of good conduct time; confinement to disciplinary
segregation for 30 days; and loss of commissary and telephone privileges for 90 days. In
addition, his personal property was impounded for 30 days.
Lewis, who is now incarcerated in Pennsylvania, filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the Middle
District of Pennsylvania, seeking the restoration of his good conduct time. In addition to
setting forth his claim of a violation of his right to due process in connection with the loss
of his good conduct time, he also asserted that he had tried to exhaust his administrative
remedies by appealing the decision of the Hearing Officer. He asserted that he had,
however, received no response to his appeal from the Regional Office. Lewis submitted
documentation of his efforts to administratively appeal his sanctions, and argued that the
requirement should be waived in his case, citing our decision in Brown v. Croak, 312
F.3d 109, 112-13 (3d Cir. 2002) (if prison official thwarts inmate’s ability to exhaust his
administrative remedies, those remedies are not considered available within meaning of
42 U.S.C. § 1997e(a)). The BOP responded that the petition should be denied based on
Lewis’s failure to comply with the complete administrative review process, citing
Moscato v. Federal Bureau of Prisons, 98 F.3d 757, 760-61 (3d Cir. 1996) (if prisoner has
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failed to exhaust administrative remedies due to his procedural default and default
renders administrative process unavailable, review of his habeas claim is barred absent
showing of cause and prejudice). In the alternative, the BOP argued that the petition was
meritless.
In an order entered on October 3, 2016, the District Court noted the disputed
factual issues relating to Lewis’s efforts to exhaust his administrative remedies but
declined to resolve the dispute, preferring instead to deny the habeas petition on the
merits. In a thorough Memorandum, the Court discussed the applicable law, reviewed
the evidence presented at Lewis’s disciplinary hearing and the Hearing Officer’s findings
and conclusions, and concluded that Lewis was afforded all of his procedural rights, and
that “some evidence” supported the decision of the Hearing Officer. Accordingly, the
District Court concluded, Lewis had failed to make out a due process violation.
Lewis appeals. We have jurisdiction under 28 U.S.C. § 1291. See Burkey v.
Marberry, 556 F.3d 142, 146 (3d Cir. 2009) (certificate of appealability not required to
appeal from denial of § 2241 petition). Our Clerk granted Lewis leave to appeal in forma
pauperis and advised him that the appeal was subject to summary dismissal under 28
U.S.C. § 1915(e)(2)(B) or summary affirmance under Third Cir. LAR 27.4 and I.O.P.
10.6. He was invited to submit argument in writing, but he has not done so.
We will summarily affirm the order of the District Court because no substantial
question is presented by this appeal, Third Circuit LAR 27.4 and I.O.P. 10.6. A
challenge to the BOP’s execution of a sentence, including the sanction of loss of good
conduct time, is properly brought under 28 U.S.C. § 2241. See Woodall v. Federal
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Bureau of Prisons, 432 F.3d at 235, 241-43 (3d Cir. 2005). We exercise plenary review
over the District Court’s legal conclusions and review its factual findings for clear error.
See Rios v. Wiley, 201 F.3d 257, 262 (3d Cir. 2000).
Due process provides certain procedural protections at a prisoner’s disciplinary
hearing, Wolff v. McDonnell, 418 U.S. 539, 564-66 (1974), as do the governing
regulations, see 28 C.F.R. § 541.5, et seq., but, as explained by the District Court, Lewis
received all of the process he was due. He received advance written notice of the charge,
he called witnesses and gave a statement at the hearing that his refusal was medically
justified, and he elected to have a staff representative speak for him. In addition, Lewis
indicated throughout that he was aware of his rights in connection with the hearing.
Also, the Hearing Officer fully considered all of the evidence and fully explained his
decision to sanction Lewis for refusing to undergo the PPD skin test. Lewis was then
notified of his right to appeal.
Furthermore, the findings of a Disciplinary Hearing Officer must be supported by
“some evidence in the record,” Superintendent, Massachusetts Correctional Inst. v. Hill,
472 U.S. 445, 454-56 (1985), but again, as explained by the District Court, the standard
was met in Lewis’s case. Lewis does not have a documented history of a severe previous
reaction to the PPD skin test, and the Hearing Officer did not favorably rate his
credibility with respect to his assertion of a justified need for a chest x-ray. Therefore,
the Hearing Officer’s conclusion that Lewis’s refusal to undergo the PPD test was
unjustified is supported by “some evidence.” Lewis’s due process claim is thus without
merit.
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We note that, in his Traverse to the BOP’s response to his § 2241 petition, Lewis
relied upon specific text in P.S. 6190.04, in support of his argument that a self-reported
allergy is sufficient to show the need for a chest x-ray in lieu of a PPD skin test.
Specifically, he noted the following text:
A self-reported, undocumented previous positive tuberculin skin test is not
a contraindication to receiving a tuberculin skin test unless a severe
previous reaction (e.g. whole arm swelling or severe blistering) has been
documented or described by the inmate. *** An inmate may not request to
substitute a chest radiograph for a screening tuberculin skin test. The only
exception is when there is a medical contraindication to tuberculin skin
testing….
P.S. 6190.04 (emphasis added).
Based on the plain language of the Program Statement, Lewis asserted that he was
entitled to a chest x-ray based solely on his self-reporting of an allergic reaction;
documentation of an allergic reaction in his records was not required, he argued. We
note that the text cited by Lewis appears in the Program Statement’s explanation of BOP
policy with respect to 28 C.F.R. § 549.12 (b)(1), which provides that the BOP “screens
each inmate for TB within two calendar days of initial incarceration.” Accordingly, we
doubt that Lewis’s textual argument has merit; this particular section of P.S. 6190.04
read as a whole pertains to inmates who are completely new to the Bureau of Prisons and
have no records.1 Lewis is not such an inmate.
But, even assuming that a textual argument has some merit, the self-reporting of a
“severe previous reaction” would necessarily have to be credible. In concluding that

The entire Program Statement was submitted as an exhibit to the BOP’s response to
Lewis’s petition.
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Lewis’s refusal to undergo a PPD test was unjustified, the Hearing Officer specifically
relied upon a prior incident report from another institution where Lewis had refused a
PPD test. The report stated that Lewis told a nurse that “he has not had a + PPD nor does
he have severe reactions, he [just] chooses not to have the tuberculosis injected into his
body.” Lewis’s credibility was thus at issue at his disciplinary hearing, and the Hearing
Officer specifically found that all staff members’ statements and written observations
were more credible than Lewis’s self-reporting. Accordingly, it was not wrong for the
Hearing Officer to insist upon written documentation in Lewis’s prison record of a prior
severe reaction to the PPD skin test. Finding none, the Hearing Officer properly
adjudicated Lewis guilty of the misconduct.
For the foregoing reasons, we will summarily affirm the order of the District Court
denying Lewis’s petition for writ of habeas corpus.

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